Bill Text: HI HB1435 | 2012 | Regular Session | Amended
Bill Title: Ignition Interlock; Repeat Intoxicated Drivers
Spectrum: Partisan Bill (Democrat 23-0)
Status: (Engrossed - Dead) 2011-12-01 - Carried over to 2012 Regular Session. [HB1435 Detail]
Download: Hawaii-2012-HB1435-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1435 |
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TWENTY-SIXTH LEGISLATURE, 2011 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO HIGHWAY SAFETY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to make amendments to the State's ignition interlock law recommended by the Hawaii ignition interlock implementation task force pursuant to Act 171, Session Laws of Hawaii 2008, as amended.
SECTION 2. Chapter 291E, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:
"§291E‑ Repeat intoxicated driver after December 31, 2010; return of motor vehicle registration and number plates. Any repeat intoxicated driver arrested for a violation of section 291E-61 or 291E-61.5 after December 31, 2010, may request the return of any motor vehicle registration and number plates surrendered to the director as a result of the arrest under section 291E-33 in order to comply with this part. The director shall return the motor vehicle registration and number plates unless a new registration and number plates have been issued as a result of the approval of an application for a special motor vehicle registration or application for consent to transfer title. Upon return of the motor vehicle registration and number plates, the repeat intoxicated driver may apply for an ignition interlock permit as provided in section 291E-44.5."
SECTION 3. Section 291E-1, Hawaii Revised Statutes, is amended as follows:
1. By amending the definitions of "administrative revocation", "alcohol enforcement contact", and "repeat intoxicated driver" to read:
""Administrative revocation"
means termination of the respondent's[:
(1) License] license and the
privilege to operate a vessel underway on or in the waters of the State
pursuant to part III[; and
(2) Registration of any motor vehicle
registered to a respondent found to be a repeat intoxicated driver],
but does not include any revocation imposed under section 291E‑61 or 291E-61.5."
"Alcohol enforcement contact" means:
(1) Any administrative revocation ordered pursuant to part III;
(2) Any administrative revocation ordered pursuant to part XIV of chapter 286, as that part was in effect on or before December 31, 2001;
(3) Any suspension or revocation of any license [or
motor vehicle registration, or both,] or any suspension or revocation of a
privilege to operate a vessel underway imposed by this or any other state or
federal jurisdiction for refusing to submit to a test for alcohol
concentration;
(4) Any conviction in this State for operating or being in physical control of a vehicle while having an unlawful alcohol concentration or while under the influence of alcohol; or
(5) Any conviction in any other state or federal jurisdiction for an offense that is comparable to operating or being in physical control of a vehicle while having an unlawful alcohol concentration or while under the influence of alcohol."
"Repeat intoxicated driver" means a person who previously:
(1) Has been convicted, during the five years preceding the date of arrest, of one or more violations under:
(A) Section 291E-61 or 291E-61.5, as a result of having consumed alcohol; or
(B) Section 291-4 or 291-4.4, as those sections were in effect on or before December 31, 2001;
(2) Has been convicted, during the ten years preceding the date of arrest, of three or more violations under:
(A) Section 291E-61 or 291E-61.5, as a result of having consumed alcohol; or
(B) Section 291-4 or 291-4.4, as those sections were in effect on or before December 31, 2001; or
(3) Has had one prior alcohol enforcement contact or
drug enforcement contact during the five years preceding the date of
arrest, two prior alcohol enforcement contacts or drug enforcement contact
during the [seven] five years preceding the date of arrest, or
three or more prior alcohol enforcement contacts or drug enforcement contact
during the ten years preceding the date of arrest."
2. By repealing the definitions of "qualified household member", "temporary number plates", and "temporary vehicle registration".
[""Qualified household
member" means a household member of the respondent who has a license that
has not expired or been suspended or revoked.
"Temporary number plates" refers
to the temporary number plates given, along with the temporary vehicle
registration, to a respondent pursuant to section 291E-33, but does not include
a temporary number plate attached to a new vehicle pursuant to sections 249-7.5
and 286-53.
"Temporary vehicle registration"
means the portion of the notice of administrative revocation that, when
completed by the arresting law enforcement officer, permits the respondent to
drive a vehicle registered in the name of the respondent for thirty days or
until the time established by the director under part III."]
SECTION 4. Section 291E-6, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) The vendor selected for installation
and maintenance of ignition interlock devices pursuant to this chapter [291E]
shall be audited annually by the director of transportation pursuant to this
section and the rules adopted thereunder. The director of transportation
may require the vendor to pay for all or part of the costs incurred in
conducting the audit."
SECTION 5. Section 291E-31, Hawaii Revised Statutes, is amended to read as follows:
"§291E-31 Notice of administrative revocation; effect. As used in this part, the notice of administrative revocation:
(1) Establishes that the respondent's license and privilege to operate a vehicle in the State or on or in the waters of the State shall be terminated:
(A) Thirty days after the date the notice of administrative revocation is issued in the case of an alcohol related offense;
(B) Forty-four days after the date the notice of administrative revocation is issued in the case of a drug related offense; or
(C) Such later date as is established by the director under section 291E-38,
if the director administratively revokes the respondent's license and privilege;
[(2) Establishes that the registration of
any motor vehicle registered to a respondent who is a repeat intoxicated driver
shall be terminated thirty days after the date of an arrest pursuant to section
291E-33(c);
(3)] (2) Establishes the date on which
administrative revocation proceedings against the respondent were initiated;
[(4)] (3) Serves as a temporary permit,
if applicable, to operate a vehicle as provided in section 291E-33; and
[(5)] (4) Notifies the respondent that
the respondent shall keep an ignition interlock device installed and operating
in any vehicle the respondent operates during the revocation period if the
respondent had a valid license at the time of the arrest."
SECTION 6. Section 291E-33, Hawaii Revised Statutes, is amended to read as follows:
"§291E-33 Probable cause determination; issuance of notice of administrative revocation; procedures. (a) Whenever a person is arrested for a violation of section 291E-61 or 291E‑61.5 on a determination by the arresting law enforcement officer that:
(1) There was reasonable suspicion to stop the vehicle or the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20; and
(2) There was probable cause to believe that the person was operating the vehicle while under the influence of an intoxicant;
the law enforcement officer [immediately]
shall take possession of any license held by the person and request the person
to take a test for alcohol concentration, in the case of an alcohol related
offense, or a test for drug content in the blood or urine, in the case of a
drug related offense. The law enforcement officer shall inform the person
that, in the case of an alcohol related offense, the person shall elect to take
a breath test, a blood test, or both, pursuant to section 291E‑11, but
that the person may refuse to submit to testing under this chapter. In the
case of a drug related offense, the person shall elect to take a blood test, a
urine test, or both, pursuant to section 291E-11, after being informed that the
person may refuse to submit to testing under this chapter.
(b) When applicable under section 291E-15, the law enforcement officer also shall:
(1) Inform the person of the sanctions under section 291E‑41, including the sanction for refusing to take a breath, blood, or urine test, if applicable; and
(2) Ask the person if the person still refuses to submit to a breath, blood, or urine test, upon the law enforcement officer's determination that, after the person has been informed by a law enforcement officer that the person may refuse to submit to testing, the person under arrest has refused to submit to a breath, blood, or urine test.
[Thereafter,] (c) After taking action
pursuant to subsections (a) and (b), as applicable, the law enforcement
officer shall complete and issue to the person a notice of administrative
revocation and shall indicate thereon whether the notice shall serve as a
temporary permit. The notice shall serve as a temporary permit, unless, at the
time of arrest: the person was unlicensed; the person's license or privilege
to operate a vehicle was revoked or suspended; or the person had no license in
the person's possession.
[(b)] (d) Whenever a law enforcement
officer determines that, as the result of a blood or urine test performed
pursuant to section 291E-21, there is probable cause to believe that a person
being treated in a hospital or medical facility has violated section 291E-61 or
291E-61.5, the law enforcement officer immediately shall take possession of any
license held by the person and shall complete and issue to the person a notice
of administrative revocation and indicate thereon whether the notice shall
serve as a temporary permit. The notice shall serve as a temporary permit
unless, at the time the notice was issued: the person was unlicensed; the
person's license or privilege to operate a vehicle was revoked or suspended; or
the person had no license in the person's possession.
[(c) Whenever a respondent under this
section is a repeat intoxicated driver, the arresting law enforcement officer
shall take possession of the motor vehicle registration and, if the motor
vehicle being driven by the respondent is registered to the respondent, remove
the number plates and issue a temporary motor vehicle registration and
temporary number plates for the motor vehicle. No temporary motor vehicle
registration or temporary number plates shall be issued if the respondent's
registration has expired or been revoked. The applicable police department,
upon determining that the respondent is a repeat intoxicated driver, shall
notify the director of the appropriate county agency to enter a stopper on the
motor vehicle registration files to prevent the respondent from conducting any
motor vehicle transactions, except as permitted under this part.]"
SECTION 7. Section 291E-34, Hawaii Revised Statutes, is amended as follows:
1. By amending subsections (b) through (e) to read:
"(b) The notice, when completed by the law enforcement officer and issued to the respondent, shall contain at a minimum the following information relating to the incident that gives rise to the issuance of the notice of administrative revocation:
(1) Information identifying the respondent;
(2) The specific violation for which the respondent was arrested;
(3) The date issued and the date the administrative revocation is scheduled to go into effect;
(4) The expiration date of the temporary permit[,
and the temporary motor vehicle registration and temporary number plates if
applicable]; and
(5) That the issuance of the notice of administrative revocation will be administratively reviewed.
(c) The notice shall provide, at a minimum, the following information relating to the administrative review:
(1) That the review is automatic;
(2) That the respondent, within three days of the
issuance of the notice of administrative revocation in the case of an alcohol
related offense and within seventeen days of the issuance of the notice of
administrative revocation in the case of a drug related offense, may submit
written information demonstrating why the respondent's license and privilege to
operate a vehicle[, and motor vehicle registration if applicable,]
should not be administratively revoked;
(3) The address or location where the respondent may submit the information;
(4) That the respondent is not entitled to be present or represented at the administrative review; and
(5) That the administrative review decision shall be mailed to the respondent:
(A) No later than eight days after the date of the issuance of the notice of administrative revocation in the case of an alcohol related offense; and
(B) No later than twenty-two days after the date of the issuance of the notice of administrative revocation in the case of a drug related offense.
(d) The notice shall state that, if the
respondent's license and privilege to operate a vehicle[, and motor vehicle
registration if applicable,] are not administratively revoked after the
review, the respondent's license[, and if applicable, motor vehicle
registration and any number plates taken into custody,] shall be returned,
unless a subsequent alcohol or drug enforcement contact has occurred, along
with a certified statement that the administrative revocation proceedings have
been terminated.
(e) The notice shall state that, if the
respondent's license and privilege to operate a vehicle[, and motor vehicle
registration if applicable,] are administratively revoked after the review,
a decision shall be mailed to the respondent, or to the parent or guardian of
the respondent if the respondent is under the age of eighteen, that shall
contain, at a minimum, the following information:
(1) The reasons why the respondent's license and
privilege to operate a vehicle[, and motor vehicle registration if
applicable,] were administratively revoked;
(2) That the respondent may request the director, within six days of the date the decision is mailed, to schedule an administrative hearing to review the administrative revocation;
(3) That, if the respondent's request for an administrative hearing is received by the director within six days of the date the decision was mailed, the hearing shall be scheduled to commence:
(A) No later than twenty-five days after the date of the issuance of the notice of administrative revocation in the case of an alcohol related offense; and
(B) No later than thirty-nine days after the date of the issuance of the notice of administrative revocation in the case of a drug related offense;
(4) The procedure to request an administrative hearing;
(5) That failure to request an administrative hearing within the time provided shall cause the administrative revocation to take effect for the period and under the conditions established by the director in the decision;
(6) That the respondent may regain the right to a hearing by requesting the director, within sixty days after the issuance of the notice of administrative revocation, to schedule a hearing;
(7) That the director shall schedule the hearing to
commence no later than thirty days after a request under paragraph (6) is
received, but that, except as provided in section [291E-38(k),] 291E-38(j),
the temporary permit[, and temporary motor vehicle registration and
temporary number plates if applicable,] shall not be extended if the
respondent fails to request an administrative hearing within the initial
six-day period provided for that purpose;
(8) That failure to attend the hearing shall cause the administrative revocation to take effect for the period and under the conditions indicated;
(9) The duration of the administrative revocation and other conditions that may be imposed, including: referral to the driver's education program for an assessment of the respondent's substance abuse or dependence and the need for treatment;
[(10) That, pursuant to section 291E-48, the
director may grant a special motor vehicle registration to a qualified
household member or to a co-owner of any motor vehicle owned by the respondent,
upon a determination that the person is completely dependent on the motor
vehicle for the necessities of life; provided that the special motor vehicle
registration shall not be valid for use by the respondent;] and
[(11)] (10) That the respondent shall
obtain an ignition interlock permit in order to operate a vehicle during the
revocation period if the respondent had a valid license at the time of the
arrest."
2. By amending subsections (g) and (h) to read:
"(g) The notice shall state that, if the
administrative revocation is reversed after the hearing, the respondent's
license[, and if applicable, motor vehicle registration and any number
plates taken into custody,] shall be returned, along with a certified
statement that the administrative revocation proceedings have been terminated.
(h) The notice shall state that, if the administrative revocation is sustained at the hearing, a written decision shall be mailed to the respondent, or to the parent or guardian of the respondent if the respondent is under the age of eighteen, that shall contain, at a minimum, the following information:
(1) The effective date of the administrative revocation;
(2) The duration of the administrative revocation;
[(3) If applicable, the date by which any
outstanding motor vehicle number plates issued to the respondent must be
surrendered to the director;
(4) If applicable, that failure to
surrender any motor vehicle number plates as required is a misdemeanor;
(5)] (3) Other
conditions that may be imposed by law, including the use of an ignition
interlock device; and
[(6)] (4) The right to obtain judicial
review."
SECTION 8. Section 291E-35, Hawaii Revised Statutes, is amended to read as follows:
"§291E-35 Immediate restoration of
license [and motor vehicle registration]. (a) In cases involving
an alcohol related offense, if a test conducted in accordance with part II and
section 321‑161 and the rules adopted thereunder shows that a respondent
had an alcohol concentration less than .08, the director or the arresting law
enforcement agency immediately shall return the respondent's license[, and
if applicable, motor vehicle registration and any number plates taken into
custody,] along with a certified statement that administrative revocation
proceedings have been terminated with prejudice.
(b) In cases involving a drug related offense,
if a test conducted in accordance with part II and section 321‑161 and
the rules adopted thereunder fails to show the presence, in the respondent's
blood or urine, of any drug that is capable of impairing the respondent's
ability to operate a vehicle in a careful and prudent manner, the director or
the arresting law enforcement agency immediately shall return the respondent's
license[, and if applicable, motor vehicle registration and any number
plates taken into custody,] along with a certified statement that
administrative revocation proceedings have been terminated with
prejudice."
SECTION 9. Section 291E-36, Hawaii Revised Statutes, is amended to read as follows:
"§291E-36 Documents required to be submitted for administrative review; sworn statements. (a) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and submits to a test that establishes: the respondent's alcohol concentration was .08 or more; the presence, in the respondent's blood or urine, of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner; or whenever a respondent has been involved in a collision resulting in injury or death and a blood or urine test performed pursuant to section 291E-21 establishes that the respondent's alcohol concentration was .08 or more or establishes the presence in the respondent's blood or urine of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner, the following shall be forwarded immediately to the director:
(1) A copy of the arrest report or the report of the law enforcement officer who issued the notice of administrative revocation to the person involved in a collision resulting in injury or death and the sworn statement of the arresting law enforcement officer or the officer who issued the notice of administrative revocation, stating facts that establish that:
(A) There was reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the respondent was tested pursuant to section 291E-21;
(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant; and
(C) The respondent agreed to be tested or the person was tested pursuant to section 291E-21;
(2) In a case involving an alcohol related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The equipment used to conduct the test was approved for use as an alcohol testing device in this State;
(B) The person had been trained and at the time the test was conducted was certified and capable of maintaining the testing equipment; and
(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;
(3) In a case involving an alcohol related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The person was trained and at the time the test was conducted was certified and capable of operating the testing equipment;
(B) The person followed the procedures established for conducting the test;
(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated that the respondent's alcohol concentration was at, or above, the prohibited level; and
(D) The person whose breath or blood was tested is the respondent;
(4) In a case involving a drug related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The equipment used to conduct the test was approved for use in drug testing;
(B) The person conducting the test had been trained and, at the time of the test, was certified and capable of maintaining the testing equipment; and
(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;
(5) In a case involving a drug related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) At the time the test was conducted, the person was trained and capable of operating the testing equipment;
(B) The person followed the procedures established for conducting the test;
(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated the presence of one or more drugs or their metabolites in the respondent's blood or urine; and
(D) The person whose blood or urine was tested is the respondent;
(6) A copy of the notice of administrative revocation issued by the law enforcement officer to the respondent;
(7) Any license[, and motor vehicle registration
and number plates, if applicable,] taken into possession by the law
enforcement officer; and
(8) A listing of any prior alcohol or drug enforcement contacts involving the respondent.
(b) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and refuses to submit to a test to determine alcohol concentration or drug content in the blood or urine, the following shall be forwarded immediately to the director:
(1) A copy of the arrest report and the sworn statement of the arresting law enforcement officer, stating facts that establish that:
(A) There was reasonable suspicion to stop the vehicle or the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20;
(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant;
(C) The respondent was informed of:
(i) The sanctions of section 291E-41;
(ii) The possibility that criminal charges may be filed; and
(iii) The probable consequences of refusing to be tested for alcohol concentration or drug content in the blood or urine; and
(D) The respondent refused to be tested;
(2) A copy of the notice of administrative revocation issued to the respondent;
(3) Any [driver's] license[, and motor
vehicle registration and number plates if applicable,] taken into
possession; and
(4) A listing of all alcohol and drug enforcement contacts involving the respondent."
SECTION 10. Section 291E-37, Hawaii Revised Statutes, is amended to read as follows:
"§291E-37 Administrative review;
procedures; decision. (a) The director automatically shall review the
issuance of a notice of administrative revocation and shall issue a written
decision administratively revoking the license and privilege to operate a
vehicle[, and motor vehicle registration if applicable,] or rescinding
the notice of administrative revocation. The written review decision shall be
mailed to the respondent, or to the parent or guardian of the respondent if the
respondent is under the age of eighteen, no later than:
(1) Eight days after the date the notice was issued in a case involving an alcohol related offense; or
(2) Twenty-two days after the date the notice was issued in a case involving a drug related offense.
(b) The respondent shall have the opportunity
to demonstrate in writing why the respondent's license and privilege to operate
a vehicle[, and motor vehicle registration if applicable,] should not be
administratively revoked and, within three days of receiving the notice of
administrative revocation, as provided in section 291E-33, shall submit any
written information, either by mail or in person, to the director's office or
to any office or address designated by the director for that purpose.
(c) In conducting the administrative review, the director shall consider:
(1) Any sworn or unsworn written statement or other written evidence provided by the respondent;
(2) The breath, blood, or urine test results, if any; and
(3) The sworn statement of any law enforcement officer or other person or other evidence or information required by section 291E‑36.
(d) The director shall administratively revoke the respondent's license and privilege to operate a vehicle if the director determines that:
(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E‑19 and 291E‑20, or the person was tested pursuant to section 291E‑21;
(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while under the influence of an intoxicant; or
(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test after being informed:
(i) That the person may refuse to submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15.
[(e) The director shall administratively
revoke the registration of any vehicle owned or registered to the respondent
and take custody of any number plates issued to the respondent if the director
determines that the respondent is a repeat intoxicated driver and that:
(1) There existed reasonable suspicion to
stop the vehicle, the vehicle was stopped at an intoxicant control roadblock
established and operated in compliance with sections 291E‑19 and 291E‑20,
or the person was tested pursuant to section 291E‑21;
(2) There existed probable cause to believe
that the respondent operated the vehicle while under the influence of an
intoxicant; and
(3) The evidence proves by a preponderance
that:
(A) The respondent operated the
vehicle while under the influence of an intoxicant; or
(B) The respondent operated the
vehicle and refused to submit to a breath, blood, or urine test after being
informed:
(i) That the person may refuse to
submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and
then asked if the person still refuses to submit to a breath, blood, or urine
test, in compliance with the requirements of section 291E-15.
(f)] (e) If the evidence does
not support administrative revocation, the director shall rescind the notice of
administrative revocation and return the respondent's license[, and if
applicable, motor vehicle registration and any number plates taken into
custody,] along with a certified statement that administrative revocation
proceedings have been terminated.
[(g)] (f) If the director
administratively revokes the respondent's license and privilege to operate a
vehicle, [and motor vehicle registration if applicable,] the director
shall mail a written review decision to the respondent, or to the parent or
guardian of the respondent if the respondent is under the age of eighteen. The
written review decision shall:
(1) State the reasons for the administrative revocation;
(2) Indicate that the respondent has six days from the date the decision is mailed to request an administrative hearing to review the director's decision;
(3) Explain the procedure by which to request an administrative hearing;
(4) Be accompanied by a form, postage prepaid, that the respondent may fill out and mail in order to request an administrative hearing;
(5) Inform the respondent of the right to review and copy all documents considered at the review, including the arrest report and the sworn statements of law enforcement officers or other persons, prior to the hearing; and
(6) State that the respondent may be represented by counsel at the hearing, submit evidence, give testimony, and present and cross-examine witnesses, including the arresting law enforcement officer.
[(h)] (g) Failure of the
respondent to request a hearing within the time provided in section 291E‑38(a)
shall cause the administrative revocation to take effect for the period and
under the conditions provided in the administrative review decision issued by
the director under this section. The respondent may regain the right to an
administrative hearing by requesting the director, within sixty days of the
issuance of the notice of administrative revocation as provided in section 291E‑33,
to schedule an administrative hearing. The administrative hearing shall be
scheduled to commence no later than thirty days after the request is received
by the director. The administrative review decision issued by the director
under this section shall explain clearly the consequences of failure to request
an administrative hearing and the procedure by which the respondent may regain
the right to a hearing."
SECTION 11. Section 291E-38, Hawaii Revised Statutes, is amended to read as follows:
"§291E-38 Administrative hearing;
procedure; decision. (a) If the director administratively revokes the
respondent's license and privilege to operate a vehicle[, and motor vehicle
registration if applicable,] after the administrative review, the
respondent may request an administrative hearing to review the decision within
six days of the date the administrative review decision is mailed. If the
request for hearing is received by the director within six days of the date the
decision is mailed, the hearing shall be scheduled to commence no later than:
(1) Twenty-five days from the date the notice of administrative revocation was issued in a case involving an alcohol related offense; or
(2) Thirty-nine days from the date the notice of administrative revocation was issued in a case involving a drug related offense.
The director may continue the hearing only as
provided in subsection [(k).] (j).
(b) The hearing shall be held at a place designated by the director, as close to the location where the notice of administrative revocation was issued as practical.
(c) The respondent may be represented by counsel and, if the respondent is under the age of eighteen, must be accompanied by a parent or guardian.
(d) The director shall conduct the hearing and have authority to:
(1) Administer oaths and affirmations;
(2) Examine witnesses and take testimony;
(3) Receive and determine the relevance of evidence;
(4) Issue subpoenas;
(5) Regulate the course and conduct of the hearing;
(6) Impose up to the maximum license revocation
period as specified under section [291E‑41(b);] 291E‑41(b)(4);
and
(7) Make a final ruling.
(e) The director shall affirm the administrative revocation only if the director determines that:
(1) There existed reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E‑19 and 291E‑20, or the person was tested pursuant to section 291E‑21;
(2) There existed probable cause to believe that the respondent operated the vehicle while under the influence of an intoxicant; and
(3) The evidence proves by a preponderance that:
(A) The respondent operated the vehicle while under the influence of an intoxicant; or
(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test after being informed:
(i) That the person may refuse to submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test in compliance with the requirements of section 291E-15.
[(f) In addition to subsection (e), the
director shall affirm the administrative revocation of the registration of any
motor vehicle owned by or registered to the respondent only if the director
determines that the respondent is a repeat intoxicated driver. If the director
affirms the administrative revocation pursuant to this subsection, the director
shall order the respondent to surrender the number plates and motor vehicle
registration of any motor vehicle owned by or registered to the respondent.
The director may destroy any number plates taken into custody.
(g)] (f) The respondent's prior
alcohol and drug enforcement contacts shall be entered into evidence.
[(h)] (g) The sworn statements
provided in section 291E-36 shall be admitted into evidence. The director
shall consider the sworn statements in the absence of the law enforcement
officer or other person. Upon written notice to the director, no later than
five days prior to the hearing, that the respondent wishes to examine a law
enforcement officer or other person who made a sworn statement, the director
shall issue a subpoena for the officer or other person to appear at the
hearing. Personal service upon the law enforcement officer or other person who
made a sworn statement shall be made no later than forty-eight hours prior to
the hearing time. If the officer or other person cannot appear, the officer or
other person at the discretion of the director, may testify by telephone.
[(i)] (h) The hearing shall be
recorded in a manner to be determined by the director.
[(j)] (i) The director's
decision shall be rendered in writing and mailed to the respondent, or to the
parent or guardian of the respondent if the respondent is under the age of
eighteen, no later than five days after the hearing is concluded. If the
decision is to reverse the administrative revocation, the director shall return
the respondent's license, [and if applicable, motor vehicle registration and
any number plates taken into custody,] along with a certified statement
that administrative revocation proceedings have been terminated. If the
decision sustains the administrative revocation, the director shall mail to the
respondent a written decision indicating the duration of the administrative
revocation and any other conditions or restrictions as may be imposed pursuant
to section 291E‑41.
[(k)] (j) For good cause shown,
the director may grant a continuance either of the commencement of the hearing
or of a hearing that has already commenced. If a continuance is granted at the
request of the director, the director shall extend the validity of the
temporary permit, [and temporary motor vehicle registration and temporary
number plates if applicable,] unless otherwise prohibited, for a period not
to exceed the period of the continuance. If a continuance is granted at the
request of the respondent, the director shall not extend the validity of the
temporary permit[, or temporary motor vehicle registration and temporary
number plates, if applicable]. For purposes of this section, a continuance
means a delay in the commencement of the hearing or an interruption of a
hearing that has commenced, other than for recesses during the day or at the
end of the day or week. The absence from the hearing of a law enforcement
officer or other person, upon whom personal service of a subpoena has been made
as set forth in subsection [(h),] (g), constitutes good cause for
a continuance.
[(l) The director may grant a special motor
vehicle registration, pursuant to section 291E-48, to a qualified household
member or a co-owner of any motor vehicle upon determination that:
(1) The person is completely dependent on
the motor vehicle for the necessities of life; and
(2) At the time of the application for a special
motor vehicle registration, the respondent does not have a valid ignition
interlock permit.
The special motor vehicle registration shall not
be valid for use by the respondent.
(m)] (k) If the respondent fails
to appear at the hearing, or if a respondent under the age of eighteen fails to
appear with a parent or guardian, administrative revocation shall take effect
for the period and under the conditions established by the director in the
administrative review decision issued by the director under section 291E‑37."
SECTION 12. Section 291E-39, Hawaii Revised Statutes, is amended to read as follows:
"§291E-39 Fees and costs. The
director may assess and collect a $30 fee from the respondent to cover the
costs of processing the respondent's request for an administrative hearing[.
These costs include but shall not be limited to: the cost of photocopying
documents; conditional license permits, temporary permits, temporary motor
vehicle registrations, temporary number plates, and relicensing forms; interpreter
services; and other similar costs]; provided that the costs of issuing
subpoenas for witnesses, including mileage fees, shall be borne by the party
requesting the subpoena. The director may waive the fee in the case of an
indigent respondent, upon an appropriate inquiry into the financial
circumstances of the respondent seeking the waiver and an affidavit or a
certificate signed by the respondent demonstrating the respondent's financial
inability to pay the fee."
SECTION 13. Section 291E-41, Hawaii Revised Statutes, is amended to read as follows:
"§291E-41
Effective date, conditions, and period of administrative revocation; criteria. (a) Unless an administrative revocation is reversed
or the temporary permit[, and temporary motor vehicle registration and
temporary number plates, if applicable, are] is extended by the director, administrative revocation
shall become effective on the day specified in the notice of administrative
revocation. Except as provided in section 291E-44.5, no license and privilege
to operate a vehicle shall be restored under any circumstances during the
administrative revocation period. Upon completion of the administrative
revocation period, the respondent may reapply and be reissued a license
pursuant to section 291E-45.
(b) Except as provided in paragraph (5) and in
section 291E-44.5, the respondent shall keep an ignition interlock device
installed and operating in any vehicle the respondent operates during the
revocation period. Except as provided in section 291E-5, installation and
maintenance of the ignition interlock device shall be at the respondent's [own]
expense. The periods of administrative revocation, with respect to a
license and privilege to operate a vehicle, [and motor vehicle registration
if applicable,] that shall be imposed under this part are as follows:
(1) A [one year] one-year revocation of
license and privilege to operate a vehicle, if the respondent's record shows no
prior alcohol enforcement contact or drug enforcement contact during the five
years preceding the date the notice of administrative revocation was issued;
(2) An [eighteen month] eighteen-month
revocation of license and privilege to operate a vehicle [and of the
registration of any motor vehicle registered to the respondent], if the
respondent's record shows one prior alcohol enforcement contact or drug
enforcement contact during the five years preceding the date the notice of
administrative revocation was issued;
(3) A two-year revocation of license and privilege to
operate a vehicle [and of the registration of any motor vehicle registered
to the respondent], if the respondent's record shows two prior alcohol
enforcement contacts or drug enforcement contacts during the five years
preceding the date the notice of administrative revocation was issued;
(4) A minimum of five years up to a maximum of ten
years revocation of license and privilege to operate a vehicle [and of the
registration of any motor vehicle registered to the respondent], if the
respondent's record shows three or more prior alcohol enforcement contacts or
drug enforcement contacts during the ten years preceding the date the notice of
administrative revocation was issued;
(5) For respondents under the age of eighteen years
who were arrested for a violation of section 291E-61 or 291E-61.5, revocation
of license and privilege to operate a vehicle for the appropriate revocation
period provided in paragraphs (1) to (4) or in subsection [(d);] (c);
provided that the respondent shall be prohibited from driving during the period
preceding the respondent's eighteenth birthday and shall thereafter be subject
to the ignition interlock requirement of this subsection for the balance of the
revocation period; or
(6) For respondents, other than those excepted
pursuant to section [[291E-44.5(b),] 291E-44.5, who do not
install an ignition interlock device in any vehicle the respondent operates
during the revocation period, revocation of license and privilege to operate a
vehicle for the period of revocation provided in paragraphs (1) to (5) or in
subsection [[(d)];] (c); provided that:
(A) The respondent shall be absolutely prohibited from driving during the revocation period and subject to the penalties provided by section 291E-62 if the respondent drives during the revocation period; and
(B) The director shall not issue an ignition interlock permit to the respondent pursuant to section 291E-44.5;
provided that when more than one administrative revocation, suspension, or conviction arises out of the same arrest, it shall be counted as only one prior alcohol enforcement contact or drug enforcement contact, whichever revocation, suspension, or conviction occurs later.
[(c) Whenever a motor vehicle registration
is revoked under this part, the director shall cause the revocation to be
entered electronically into the motor vehicle registration file of the
respondent.
(d)] (c) If a respondent has
refused to be tested after being informed:
(1) That the person may refuse to submit to testing in compliance with section 291E-11; and
(2) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test, in compliance with the requirements of section 291E-15,
the revocation imposed under subsection (b)(1), (2),
(3), or (4) shall be for a period of two years, three years, four years, [and]
or ten years, respectively.
[(e)] (d) Whenever a license and
privilege to operate a vehicle is administratively revoked under this part, the
respondent shall be referred to the driver's education program for an
assessment, by a certified substance abuse counselor, of the respondent's
substance abuse or dependence and the need for treatment. The counselor shall
submit a report with recommendations to the director. If the counselor's
assessment establishes that the extent of the respondent's substance abuse or
dependence warrants treatment, the director shall so order. All costs for
assessment and treatment shall be paid by the respondent.
[(f)] (e) Alcohol and drug
enforcement contacts that occurred prior to January 1, 2002, shall be counted
in determining the administrative revocation period.
[(g)] (f) The requirement to
provide proof of financial responsibility pursuant to section 287-20 shall not
be based upon a revocation under subsection (b)(1)."
SECTION 14. Section 291E-42, Hawaii Revised Statutes, is amended to read as follows:
"§291E-42 Notice to other states.
When a nonresident's driving and boating privileges[, and motor vehicle
registration if applicable,] are administratively revoked under this part,
the director shall:
(1) Notify, in writing, the officials in charge of
traffic control, boating control, or public safety in the nonresident's home
state, and in any other state in which the nonresident has driving and boating
privileges[,] or licenses, [or any motor vehicles registered
if applicable,] of the action taken in this State; and
(2) Return to the appropriate issuing authority in
the other states any license[, and any motor vehicle registration and number
plates if applicable,] seized under section 291E‑33."
SECTION 15. Section 291E-44.5, Hawaii Revised Statutes, is amended to read as follows:
"§291E-44.5
Ignition interlock permits; driving for employment. (a) [(1)]
Except as provided in [paragraph (2),] subsection (b), upon proof
that the respondent has installed an ignition interlock device in [the
respondent's vehicle,] any vehicle the respondent operates, the
director shall issue an ignition interlock permit that will allow the
respondent to drive a vehicle equipped with an ignition interlock device during
the revocation period[; or].
[(2)] (b) Notwithstanding any
other law to the contrary, the director shall not issue an ignition interlock
permit to:
[(A)] (1) A respondent whose
license is expired, suspended, or revoked as a result of action other than the
instant revocation;
[(B)] (2) A respondent who does
not hold a valid license at the time of arrest for the violation of section
291E‑61; [or]
(3) A respondent who holds a license that is a learner's permit or instruction permit; or
[(C)] (4) A respondent who
holds either a category 4 license under section 286-102(b) or a commercial
driver's license under section 286-239(b) unless the ignition interlock permit
is restricted to a category 1, 2, or 3 license under section 286‑102(b).
[(b)(1)] (c) Except as provided
in subsection [(a)(2),] (b), the director may issue a separate
permit upon request of the respondent authorizing a respondent to
operate a vehicle owned by the respondent's employer during the period of
revocation without installation of an ignition interlock device if the
respondent is gainfully employed in a position that requires driving and the
respondent will be discharged if prohibited from driving a vehicle not equipped
with an ignition interlock device.
[(2)] (d) A request made
pursuant to [paragraph (1)] subsection (c) shall be accompanied
by:
[(A)] (1) A sworn statement
from the respondent containing facts establishing that the respondent currently
is employed in a position that requires driving and that the respondent will be
discharged if prohibited from driving a vehicle not equipped with an ignition
interlock device; and
[(B)] (2) A sworn statement
from the respondent's employer establishing that the employer will, in fact,
discharge the respondent if the respondent is prohibited from driving a vehicle
not equipped with an ignition interlock device and identifying the specific
vehicle and hours of the day the respondent will drive, not to exceed twelve
hours per day, for purposes of employment.
[(c)] (e)
A permit issued pursuant to subsection [(b)] (c) shall include
restrictions allowing the respondent to drive:
(1) Only during specified hours of employment, not to exceed twelve hours per day, and only for activities solely within the scope of the employment;
(2) Only the vehicle specified; and
(3) Only if the permit is kept in the respondent's possession while operating the employer's vehicle.
In addition, the director may impose other appropriate restrictions."
SECTION 16. Section 291E-45, Hawaii Revised Statutes, is amended to read as follows:
"§291E-45 Eligibility for relicensing
[and reregistration of motor vehicle]. [(a)] To be eligible
for relicensing or renewing the privilege to operate a vessel after a period of
administrative revocation has expired, the person shall:
(1) [Submit proof to the director of compliance]
Comply with all conditions imposed by the director;
[(2) Obtain a certified statement from the
director indicating eligibility for relicensing and for renewing the privilege
to operate a vessel;
(3) Present the certified statement to the
appropriate licensing official or to the department of land and natural
resources, as applicable;] and
[(4) Successfully complete] (2) Complete
each requirement, including payment of all applicable fees, for:
(A) Obtaining a new license in this State, pursuant to chapter 286; or
(B) Renewing the privilege to operate a vessel, as may be provided in chapter 200 or rules adopted by the department of land and natural resources pursuant to section 200‑24.
[(b) To be eligible for reregistration of a
motor vehicle, if applicable, after a period of administrative revocation has
expired, the person shall:
(1) Submit proof to the director of
compliance with all conditions imposed by the director;
(2) Obtain a certified statement from the
director indicating eligibility for registration of a motor vehicle;
(3) Present the certified statement to the
director of the appropriate county agency; and
(4) Successfully complete each requirement,
as provided in chapter 286, for obtaining a new certificate of registration for
a motor vehicle in this State, including payment of all applicable fees.]"
SECTION 17. Section 291E-46, Hawaii Revised Statutes, is amended to read as follows:
"[[]§291E-46[]]
Computation of time. The time in which any act provided in this part is to
be done is computed by excluding the first day and including the last, unless
the last day is a Saturday, Sunday, or state holiday, and then it shall
also [is] be excluded[.]; provided that if the last day
for the mailing of decisions under sections 291E-37(a) and 291E-38(i) is a
federal holiday, it shall also be excluded."
SECTION 18. Section 291E-61, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) Notwithstanding any other law to the contrary, the court shall not issue an ignition interlock permit to:
(1) A defendant whose license is expired, suspended, or revoked as a result of action other than the instant offense;
(2) A defendant who does not hold a valid license at
the time of the instant offense; [or]
(3) A defendant who holds either a category 4 license
under section 286-102(b) or a commercial driver's license under section
286-239(b), unless the ignition interlock permit is restricted to a category 1,
2, or 3 license under section 286-102(b)[.]; or
(4) A defendant who holds a license that is a learner's permit or instruction permit."
SECTION 19. Section 291E-68, Hawaii Revised Statutes, is amended to read as follows:
"[[]§291E-68[]] Refusal
to submit to a breath, blood, or urine test; penalty. [Refusal] Except
as provided in section 291E-65, refusal to submit to a breath, blood, or
urine test as required by part II is a petty misdemeanor."
SECTION 20. Section 249-9.4, Hawaii Revised Statutes, is repealed.
["§249-9.4 Special series
number plates. A qualified household member, as defined in section
291E-1, or a co-owner of a motor vehicle owned by a respondent under part III
of chapter 291E, who has been granted a special motor vehicle registration
under section 291E-48, shall apply to the appropriate county director of
finance for special number plates that shall bear a special series of numbers
or letter so as to be readily identifiable by law enforcement officers and
readily distinguishable from number plates or special number plates issued
under sections 249-9.1, 249-9.2, and 249-9.3. The director of finance may
issue the special series number plates only if:
(1) The director of finance receives written
approval for the issuance of special series number plates from the
administrative director of the courts, or the administrative director's
appointee pursuant to section 291E-1;
(2) The qualified household member or a
co-owner of the motor vehicle has a license that has not expired or been
suspended or revoked; and
(3) The applicant pays a fee for the
special series number plates that is equal to the costs of the plates and tag
or emblem, plus the administrative costs of furnishing the plates and tag or
emblem and effecting the registration for each motor vehicle for which special
series number plates are issued."]
SECTION 21. Section 291E-47, Hawaii Revised Statutes, is repealed.
["[§291E-47] Failure to
surrender number plates. Any person who has had the person's motor
vehicle registration revoked pursuant to this part and subsequently fails to
comply with an order to surrender all motor vehicle number plates issued to the
person, pursuant to chapter 249, shall be guilty of a misdemeanor."]
SECTION 22. Section 291E-48, Hawaii Revised Statutes, is repealed.
["§291E-48 Special motor
vehicle registration. (a) Anytime after the effective date of
revocation or after the administrative hearing decision is mailed pursuant to
section 291E-38(j), a qualified household member or co-owner of a motor vehicle
with a respondent who has had a motor vehicle registration revoked under this
part may submit a sworn statement to the director requesting a special motor
vehicle registration. The director may grant the request upon determining that
the following conditions have been met:
(1) The applicant is a household member of
the respondent's or a co-owner of the vehicle;
(2) The applicant has a license that has
not expired or been suspended or revoked;
(3) The applicant is completely dependent
on the motor vehicle for the necessities of life;
(4) The director finds that the applicant
will take reasonable precautions to ensure that the respondent will not drive
the vehicle; and
(5) The respondent does not have a valid
ignition interlock permit.
A person to whom a special motor vehicle
registration has been granted shall apply to the director of the appropriate
county agency for special series number plates, as provided in section 249-9.4.
(b) The director shall revoke the special
motor vehicle registration if any one of the conditions set forth in the
application no longer exist.
(c) The applicant shall be under an
affirmative duty to report to the director any changes in the conditions to the
special motor vehicle registration.
(d) The director shall adopt rules,
pursuant to chapter 91, necessary to carry out the purposes of this
section."]
SECTION 23. Section 291E-49, Hawaii Revised Statutes, is repealed.
["[§291E-49] Transferring
title to, or ownership interest in, vehicle prohibited; exceptions.
(a) A registered owner shall not sell or transfer title to, or ownership
interest in, a motor vehicle during the time period the motor vehicle's
registration has been ordered revoked and number plates surrendered or during
the time the motor vehicle bears the special series number plates pursuant to
section 249‑9.4, unless the registered owner applies to the
administrative director of the courts, or the administrative director's
appointee pursuant to section 291E‑1, for consent to transfer title to
the motor vehicle. If the director is satisfied that:
(1) The proposed sale is in good faith and
for valid consideration;
(2) The registered owner will be deprived
of the custody and control of the motor vehicle; and
(3) The sale is not for the purpose of
circumventing this part,
the director may consent to the sale or
transfer. If the director consents, the director shall issue a certified copy
of the written consent to the registered owner and forward a copy to the
appropriate county director of finance.
(b) The county director of finance, upon
proper application and the presentation to the director of finance of a
certified copy of the director's written consent to the sale or transfer of a
motor vehicle, shall transfer the certificate of title and ownership to the new
owner pursuant to chapter 286 and shall issue new number plates to the new
registered owner pursuant to chapter 249.
(c) Notwithstanding subsections (a) and
(b), if the title to the motor vehicle is transferred by foreclosure of a
chattel mortgage, cancellation of a conditional sales contract, a sale upon
execution, or decree or order of a court of competent jurisdiction, after the
motor vehicle registration has been revoked under this part, the county
director of finance shall transfer the certificate of title and ownership to
the new owner pursuant to chapter 286 and shall issue new number plates to the
new registered owner pursuant to chapter 249."]
SECTION 24. Act 171, Session Laws of Hawaii 2008, section 12(g), as amended by Act 88, Session Laws of Hawaii 2009, section 12, is amended to read as follows:
"(g) The Hawaii ignition interlock
implementation task force shall cease to exist after June 30, [2011.] 2012."
SECTION 25. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date; provided that any lifetime license revocations that have occurred at any time prior to the effective date of this Act shall be eligible for relicensing pursuant to this Act upon submitting proof to the director, as defined in section 291E-1, Hawaii Revised Statutes, that the individual has completed all requirements of any criminal conviction associated with the lifetime administrative revocation; has complied with all requirements of the lifetime revocation; and has installed an ignition interlock system in the motor vehicle; provided further that this Act shall apply retroactively to arrests occurring on or after January 1, 2011.
SECTION 26. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 27. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 28. This Act shall take effect on July 1, 2011; provided that section 24 shall take effect on June 29, 2011.
Report Title:
Ignition Interlock; Repeat Intoxicated Drivers
Description:
Clarifies recommendations of the ignition interlock implementation task force. Allows repeat intoxicated drivers to install ignition interlock devices in any vehicle they operate by eliminating the requirement to surrender motor vehicle registrations and license plates. Makes housekeeping amendments to chapter 291E. Allows persons who have had licenses administratively revoked for a lifetime to be eligible to participate in the ignition interlock program. Extends the expiration date of the ignition interlock implementation task force to 6/30/12. Establishes time frames for installation of ignition interlock devices on motor vehicles for those who have had a lifetime revocation. Applies retroactively to arrests occurring on or after January 1, 2011. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
